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Tuesday, August 30, 2016

We reported previously on HB 2186, a bill that proposed to amend the Municipal, Township, Counties, and School Code regarding zoning of public schools. Just last week, the Governor signed the legislation into law.

P.A. 99-890 confirms that local governments have authority to apply and enforce their zoning regulations on schools, consistent with the Illinois Supreme Court's ruling in the Crystal Lake bleachers' case.

Unfortunately, the proposed legislation goes much further than just clarifying that ruling. The law places new limits on local zoning authority that could create both administrative and procedural problems for local governments. The law requires local governments to modify and streamline their otherwise applicable zoning procedures for public schools. These procedures could require local governments to reduce their otherwise required application fees and limit the required number of copies of plans and other documents required to be submitted by the school district. Presumably, these costs will now be borne by the local zoning authority rather than the school district that is requesting zoning approval. The legislation also requires the local government to expedite the zoning process. The law only applies to public schools, which might implicate constitutional protections if a local zoning authority is statutorily required to treat public schools more favorably than private schools.

This legislation raises a lot of unanswered questions for local zoning authorities, none of which has been answered in the bill signed by the Governor.

To read our comprehensive analysis of this legislation, visit this post.

Monday, August 29, 2016

The blog is
back! (we went on hiatus for a week so the moderator could attend her son's
wedding!). We come back with an
interesting election case out of the federal court (central district of
Illinois).

A federal court
has ordered the Illinois State Board of Elections to certify an independent
candidate for U.S. House of Representatives to the ballot for the November
general election, even though the candidate submitted petitions containing
2,161 valid signatures fewer than the amount required. Gill v. Scholz (C.D.Ill., August 25, 2016). Specifically, the court found that no reasonably
diligent independent candidate could overcome the signature requirement in
Illinois’ 13th Congressional District, and the 10,754 signatures required for
access to the 2016 ballot unlawfully infringed upon the First Amendment
free-speech and assembly rights of the candidate and the voters who signed his
petitions.

The court also
found that the signature requirement violated the U.S. Constitution’s equal
protection clause, because there was no legitimate state interest in having
such a large disparity between the number of signatures required for
independent and new-party candidates, as compared to candidates of the
established Democratic and Republican parties. In the same congressional
district, Democratic candidates were required to obtain at least 733
signatures, and Republicans needed 739.

The candidate,
David M. Gill, timely filed nominating petitions containing a total of 11,348
signatures, but after an objection was filed and the State Board conducted a
records exam, it was determined that only 8,593 of those signatures were
legally valid. Despite having submitted almost 12-times the number of valid
signatures required of Democrats and Republicans, the State Board’s hearing
officer issued a recommendation that the Board remove Gill’s name from the
ballot. Gill and some voters then filed suit in the U.S. District Court for the
Central District of Illinois seeking an injunction to bar the State Board from
enforcing the signature requirement against him.

Plaintiffs
presented expert testimony from a federal election scholar showing that since
the year 1888, no Illinois congressional candidate has ever overcome a
signature requirement as high as 10,754, and only three candidates have ever
done so in the entire country. Only one congressional candidate in Illinois has
ever overcome a requirement as high as 8,593, which was the number of valid
signatures on Gill’s petitions, but that was back in 1974, before Illinois
limited the signature collection period to 90 days. Thus, the court found that
no reasonably diligent independent candidate could overcome the signature requirement
in the 13th Congressional District.

On August 25,
District Judge Sue E. Myerscough granted the injunction and ordered that Gill’s
name be printed on the November ballot. The court found “the evidence is that
independent and minor party candidates have not been able to meet the
requirements and such candidates get on the ballot only if no objections to the
nominating petitions are made or if it is a redistricting year when only 5,000
signatures are required.” Despite failing to meet the minimum, Gill “has
obtained 8,593 valid signatures and shown a modicum of support. Consequently,
because it appears Gill otherwise qualifies to be on the ballot, this ruling
requires that Gill remain on the ballot.”

Although it seems backwards at times, public employers
generally know by now that they can’t take action against an employee who
speaks critically about the agency or circumstances within the agency if they
are speaking as a private citizen about a situation that is of general concern
to the public. In other words, public employees lose their protection under the
First Amendment when they speak about matters that are related to their job.
That’s pretty clear, but sometimes it’s not so easy to discern if the speech is
related to the employee’s job.

Take the case of Kristofek v. Village of Orland Hills as an
example. Kristofek was a part time police officer for the Village and a full
time police officer for the Village of Lemont. Among his part time officer
duties, he was responsible for issuing traffic violations. During the course of
his duties, he stopped a driver and ultimately placed him under arrest for
driving without insurance and driving with suspended plates. The driver
apparently used his one phone call wisely because it wasn’t long before the
mayor and the police chief started getting calls from politically influential
people requesting that the citations be dismissed and the driver released from
custody, which is just what happened.

A few months later Kristofek
watched an online training in his capacity with the Lamont police
department about instances of official misconduct, causing him to become
concerned that the Orland Hills chief was guilty of such when the chief voided
the tickets and released the driver involved in his Kristofek’s arrest. He first brought his concerns to one of his
superiors, who shared it with another ranking officer and ultimately the issue
was brought to the police chief. When no
action was taken in the department, Kristofek contacted the FBI. You can probably guess what happened next –
Officer Kristofek was fired.

Kristofek sued for violation of his First Amendment right to
protected speech. The Village obtained a dismissal of the suit in the lower
court on the argument that Kristofek was speaking on matters related to his
official duties and therefore did not have First Amendment protection. The 7th
Circuit Court of Appeals reversed and has sent the case back for a trial. In
reversing the lower court finding, the court of appeals found that while
Kristofek’s statements of concern about political corruption concerned his job
and certainly the information about which he spoke was acquired as a result of
his work, Kristofek’s statements were not related to his official duties and
therefore were made by him as a private citizen. Additionally, the court noted
that the police chief failed to show that
Kristofek’s statements caused disruption in the department, which may
have superseded Kristofek’s rights as a private citizen had evidence of such
existed.

It is truly a fine line in this case in what capacity
Kristofek spoke about corruption. What is clear is the special attention the
7th circuit gave to employee statements related to agency wrongdoing. It noted
that public employees are often in the best position to witness wrongdoing in a
public agency and First Amendment protections should extend to those
situations.

Public employers must carefully analyze the situation before
taking action against an employee over what they have to say about the employer’s
operations. If statements are made by an employee directly relating to their
job duties, it’s probably not protected speech.
Furthermore, gripes and grievances
are not generally of a public concern. But public employers should tread
lightly when an employee raises questions of wrongdoing that might be of
concern to the public.

Tuesday, August 16, 2016

We reported a couple of weeks ago about a lawsuit filed against an Indiana municipality challenging the City's deletion of negative comments and blocking of individuals from posting on the City's and City Police Department Facebook pages. The lawsuit was filed by two residents of the municipality, with the assistance of the ACLU. According to news reports, the case has since settled, with the City agreeingagreed to pay the two residents a little more than $7K. The settlement also included the City's agreement to modify its "terms of use" policy for posting on City social media sites. Finally, the residents will again be allowed to post to the City's Facebook sites.

Recently, the 7th Circuit Court of Appeals issued a ruling finding that penalties assessed by Metra for parking lot violations are subject to the debt collection procedures set out in the Fair Debt Collections Practice Act. Franklin v. Parking Revenue Recovery Services, Inc.

The case involved a challenge by two individuals who had parked their cars in a Metra-owned parking lot and were fined for failure to pay the daily parking fee of $1.50. The non-payment penalty was $45.00. When the individuals failed to pay the violation notices, the matter was referred for collection to Parking Revenue Recovery Services, Inc. The individuals filed a class action against Parking Revenue, alleging that it violated the Fair Debt Collection Practices Act. Parking Revenue argued that the FDCPA does not apply because the unpaid parking obligations were not "debt" as defined by that Act.

The 7th Circuit Court of Appeals disagreed with Parking Revenue, holding that the parking penalties are debts under the FDCPA. Specifically, the court determined that the violations were obligations "arising out of" consumer transactions - in this case, the transaction was the offer by Metra for customers to park in its lot for $1.50. The court rejected Parking Revenue's argument that the violations were more in the nature of fines, like a parking meter ticket. The court noted that the crucial issue is the legal source of the obligation - in this case, there was no municipal ordinance or regulation that obligated "park-and-dashers" to pay the $45; instead, the obligation came from the contract formed when the customer parks in the lot.

Municipalities and other government entities may want to make sure that parking fines and violations are expressly established in an ordinance or other formal regulation so that the "legal source of the obligation" to pay a fine or penalty is regulatory rather than contractual.

Monday, August 15, 2016

We have written extensively in the past about theChampaign v. Madigan case. That case involved a FOIA request for text messages between City Council members sent/received on their private cell phones. The City had denied the FOIA request on the basis that these text messages were not public records because they were not in the possession of, or under the control of, a public body. The requester had challenged the City's denial, and the PAC issued a binding opinion that all communications that relate to public business, regardless of device, are public records. That opinion was appealed to the courts. Although the appellate court agreed with the PAC that the City Council members' text messages sent during a City Council meeting should be released, it disagreed with the PAC's very broad interpretation of FOIA that all communications, regardless of device, are public records.

This case recently came up in the context of the PAC's 6th binding opinion of 2016. In PAC Op. 16-006, the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City had provided the requester with emails that were sent/received on the officers' official City email accounts or were found on the City server. The City did not provide any emails on the officers' personal email accounts on the basis that the emails were not public records because the City did not have any control over the officers' personal devices, and the emails were not used by, received by, in the possession of, or under the control of a public body.

The PAC ruled against the City, finding that "communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal e-mail accounts are 'public records' under the definition of that term in section 2(c) of FOIA." The PAC noted that any other interpretation would be "contrary to the General Assembly's intent of ensuring public access to full and complete information regarding the affairs of government."

It is this exact "broad brush" interpretation of FOIA, however, that the appellate court rejected in Champaign v. Madigan when in stated:

If the General Assembly intends for communications
pertaining to city business to and from an individual city council member’s
personal electronic device to be subject to FOIA in every case, it should
expressly so state. It is not this court’s function to legislate. Indeed, such
issues are legislative matters best left to resolution by the General
Assembly.

The PAC opinion also seems to ignore the guidance contained in Champaign v. Madiganthat an individual government official is not the "public body" that is subject to FOIA. Messages sent on private devices are only considered
"public records" that might be subject to FOIA when the official sending/receiving
the message is acting as a public body. The rationale offered by the court is that the public
body is not in control or possession of messages of government officials when
sent on their private devices except in certain limited circumstances. The PAC did not appear to apply this analysis to the CPD FOIA request, and instead stuck to its pre-Champaign v. Madigan position that only the content of the message is relevant for purposes of FOIA, and the device used to send that message doesn't matter.

As the appellate court acknowledged (see above quote), FOIA does not expressly provide that communications on private devices are subject to FOIA. Based on the Champaign v. Madigan ruling, we know that individual City Council members' messages on their private devices are not necessarily subject to FOIA (they are releasable only in certain, limited circumstances such as when they are sent during a public meeting or forwarded to/from the City's server). It would be helpful for government bodies to know whether the Champaign v. Madigan analysis applies to all public officials/employees (and not just aldermen) or whether the PAC is correct that public employees will be treated as "public bodies" subject to FOIA whenever they communicate on public business, regardless of device. That's certainly not what the statute says.

Thursday, August 11, 2016

In June, we reported that Illinois
H.B. 5684, the "The Local Government Wage Increase Transparency Act,"
had passed both the Illinois Senate and House, and had been sent to the
Governor for signature. On July 28, 2016, Governor Rauner signed the bill into
law, which is now known as P.A. 099-0646.

The new law prohibits certain
wage increases or lump sum payments to a local government employee during the
employee’s last 12 months of employment unless the increase or payment
is disclosed and approved at a public meeting in open session of the employer
governing body.

The law also amends the Open
Meetings Act to require the public body to discuss compensation of individuals who
fall within this category in open session – a significant change from the otherwise
applicable OMA exemption that allows a public body to discuss compensation of specific
employees in closed session. According
to news reports about the new law, the change is an attempt by the General
Assembly to prevent a “pension spike” from occurring without the public’s
knowledge.

As previously reported, this new
law only applies to employees who began participating in IMRF prior to January
1, 2011, and who are not part of a collective bargaining unit. The trigger for
the new disclosure requirement is any increase or payment within the final 12
months of employment that makes the reportable monthly earnings 6% or more than
the previous month’s reportable earnings.

In order to comply with the Act,
the public body must, at a minimum, disclose the following at a public meeting:

the identity of the employee;

the purpose and amount of the increase or payment;

the proposed retirement date;

the effect of the payment on the expected retirement
annuity of the employee; and

the effect of the payment on the liability of the employer
to the IMRF fund.

Wednesday, August 10, 2016

Municipalities that hire individuals who
are receiving an IMRF pension may be required to pay a penalty to IMRF if the
employer knowingly fails to notify IMRF to suspend that individual’s annuity
during the term of employment under a new law just passed by the Illinois
General Assembly.

The Illinois Pension Code requires the
suspension of a retiree's IMRF pension if the retiree returns to work for an
IMRF employer and works more than the government employer’s hourly standard for
participation in IMRF (599 hours or 999 hours).
Public Act 099-0745 (effective immediately) will now create a duty for
the government employer to notify IMRF that it has hired or re-hired an IMRF
retiree. If the government employer knowingly fails to notify IMRF to suspend
the annuity, and the employee works more than the employer’s IMRF hourly
standard, the employer and the employee will each be liable to reimburse IMRF
for up to one-half of the amount of any IMRF annuity payments made to the
employee after the date the annuity should have been suspended. The reimbursement provision is not
applicable if the individual returned to work for less than twelve months.

IMRF employers should ask candidates if
they are receiving an IMRF annuity and contact IMRF to discuss the potential
ramifications of hiring an IMRF retiree prior to making an offer of
employment. If the government employer
decides to hire the retiree to work a number of hours in excess of the IMRF
hourly standard, the employer must provide the required notice to IMRF.

Tuesday, August 9, 2016

The Governor recently signed legislation (PA 99-714) to further amend the Open Meetings Act regarding the time period that an individual has to file a lawsuit to enforce an alleged OMA violation. Currently, a lawsuit must be filed within 60 days of the date of the meeting being challenged or within 60 days of discovery of the violation. The new law would allow an individual to file a lawsuit within 60 days of issuance of an Attorney General opinion where that person had filed a request for review with the Attorney General (PAC office). The new provision is contained in section 3 of OMA (new language is underlined):

(5 ILCS 120/3) (from Ch. 102, par. 43)
Sec. 3. (a) Where the provisions of this
Act are not complied with, or where there is probable cause to believe that the
provisions of this Act will not be complied with, any person, including the
State's Attorney of the county in which such noncompliance may occur, may bring
a civil action in the circuit court for the judicial circuit in which the
alleged noncompliance has occurred or is about to occur, or in which the
affected public body has its principal office, prior to or within 60 days of
the meeting alleged to be in violation of this Act or, if facts concerning the
meeting are not discovered within the 60-day period, within 60 days of the
discovery of a violation by the State's Attorney or, if the person timely files
a request for review under Section 3.5, within 60 days of the decision by the
Attorney General to resolve a request for review by a means other than the
issuance of a binding opinion under subsection (e) of Section 3.5.

Monday, August 8, 2016

The Federal
Aviation Administration (FAA) recently enacted a new rule, 14 CFR Part 107,
governing non-recreational operation of small drone aircraft weighing less
than 55 pounds (www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf).
Local governments may now conduct public drone operations under the rule
without first obtaining FAA certification. The new regulations establish
standards for who may fly small drone aircraft, how drones may be operated,
and how drones are to be registered and inspected to ensure safety.

In addition
to understanding how to comply with the FAA regulations, local governments
interested in drone operations should be aware of constitutional limitations
on drone use, privacy laws, zoning and land use concerns, and the
intersection between federal, state and local laws. Local
government organizations should continue to stay educated on federal and state
regulation of drone use and the proper procedures for conducting public drone
operations.

Transgender issues remain the emerging topic of 2016 for both individual
rights as well as rights in the workplace. Be prepared for this rare
intersection of rapidly changing law and social awareness. Ancel
Glink attorneys will demystify the topic and give you practical
advice on how to stay compliant with new laws and achieve a
respectful environment for your workers as well as the people with
which you do business.

Join us for our
two hour seminar where we will share with you the following:

the
state of the law on transgender issues;

policy
considerations to ensure compliance with the law;

training
needs for staff and supervisors;

facility
and other accommodation requirements; and

privacy
issues.

How:
Seating is limited. Reserve your spot at the breakfast briefing now
by calling Kathy Cook at 312-604-9174 or by making a reservation by email
at kcook@ancelglink.com.

Tuesday, August 2, 2016

Last month, the ACLU filed a lawsuit against the City of Beech Grove, Indiana, on behalf of two individuals who claim that comments they posted to the City's Facebook page were deleted in violation of their First Amendment rights. According to the complaint, after the two residents of Beech Grove posted comments on the City and police department Facebook pages criticizing or questioning activities of the police department, their comments were removed and they were banned from posting future comments. Shortly after the accounts were blocked, the City posted the following on its Facebook page:

This Facebook site was created to pass on information to you and to try to keep you informed as to what is occurring in our City. We will not entertain negative comments towards anyone, nor will we host arguments between individuals. We do not care who you are, we are trying to inform you. If you decide to make unpleasant comments we will delete you.

The two residents claim that the City's actions in removing their comments and blocking them from posting on both the city and police department Facebook pages violate their free speech rights under the First Amendment. The complaint also argues that the City's practice of removing public comments because of their viewpoint (i.e., "negative comments") also violates the First Amendment. The lawsuit asks the court to enjoin the City from blocking comments based on their viewpoint.

This will be an interesting case to follow, assuming it moves forward and doesn't settle like the Honolulu case involving the police department's removal of critical posts. News reports about the case suggest that the City will seek settlement with the two residents, although it won't include any agreement to "unblock" the two residents since the City has since taken its Facebook page down.

Monday, August 1, 2016

The Illinois General Assembly just approved P.A. 99-610, amending the "Freedom from Location Surveillance Act" to expand employee privacy rights in online activities. The following is a summary of the major provisions of this new law, which takes effect January 1, 2017.

The new law makes it unlawful for an employer or prospective employer to do the following:

1. Request, require, or coerce an employee or applicant to:

provide a username and password to any personal online account;

access a personal online account in the employer's presence;

invite the employer to join a group affiliated with a personal online account; or

join an online account established by the employer or add the employer to the employee's or applicant's list of contacts (e.g., "friends") to access the personal online account.

2. Discharge, discipline, discriminate against, retaliate against, or penalize an employee for any of the above activities or for filing a complaint alleging a violation.

3. Fail or refuse to hire an applicant for any of the above activities.

The law contains certain exemptions to these prohibitions, including the ability of employers to obtain information about an employee or applicant available in the public domain.

The law also allows employers to request that an employee share specific content that has been reported to the employer in connection with an investigation and to ensure compliance with laws and policies.

Finally, the law did not eliminate the authority of employers to adopt and enforce workplace policies regarding use of the employer's electronic equipment and to monitor employee use of employer's equipment.

Employers may need to review and modify any internal personnel policies that conflict with these new requirements before the law takes effect on January 1st of next year.